Citation Nr: 9809197
Decision Date: 03/26/98 Archive Date: 04/14/98
DOCKET NO. 96-04 220 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for arthritis of
multiple joints.
2. Entitlement to service connection for a left knee
disability, claimed as secondary to a service-connected right
knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. J. Kunz, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1966 to May
1969. He also served various periods of active duty and
inactive duty for training with the National Guard between
January 1970 and April 1976.
This appeal arises from a September 1995 rating decision of
the North Little Rock, Arkansas, Regional Office (RO). In
that decision, the RO found that the veteran had not
submitted new and material evidence to reopen a previously
denied claim for service connection for arthritis of multiple
joints. In the September 1995 rating decision, the RO also
denied service connection for a left knee disability, claimed
as secondary to a service-connected right knee disability.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has submitted new and material
evidence to reopen a previously denied claim for service
connection for arthritis of multiple joints. He contends
that symptoms of joint pain shown in service medical records
were precursors of arthritis of multiple joints that was
diagnosed after service. He also contends that he has a left
knee disability that developed as a result of his service-
connected right knee disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted to reopen a claim for service connection
for arthritis of multiple joints. It is also the decision of
the Board that the claim for service connection for a left
knee disability is not well grounded.
FINDINGS OF FACT
1. In a March 1994 decision, the Board denied the veteran’s
claim for service connection for arthritis of multiple
joints.
2. Service medical records submitted by the veteran after
the March 1994 decision were copies of records that were in
the claims file prior to the March 1994 decision.
3. In 1994, the veteran presented the argument, without
supporting medical evidence, that symptoms of joint pain
during service were precursors of multiple joint arthritis
that developed after service.
4. The evidence submitted since the March 1994 Board
decision, when viewed in combination with the evidence that
was submitted prior to that decision, does not raise a
reasonable possibility that the previous denial of service
connection for arthritis of multiple joints would be changed.
5. The veteran has not submitted competent medical evidence
that he currently has a disability of the left knee.
CONCLUSIONS OF LAW
1. New and material evidence has not been submitted to
reopen a claim for service connection for arthritis of
multiple joints. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991 &
Supp. 1997); 38 C.F.R. § 3.156 (1997).
2. The claim for service connection for a left knee
disability is not well grounded. 38 U.S.C.A. § 5107 (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Arthritis of Multiple Joints
The veteran is seeking service connection for arthritis of
multiple joints. Service connection for a right knee
disability has already been established. The veteran’s claim
pertains to arthritis in multiple joints other than the right
knee. In March 1994, the Board of Veterans' Appeals (Board)
denied the veteran’s claim for service connection for
arthritis of multiple joints. When a claim is denied by the
Board, the claim may not be reopened and reviewed unless new
and material evidence with respect to the claim is presented
or secured. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991 & Supp.
1997).
A final decision on a claim that has been denied shall be
reopened if new and material evidence with respect to that
claim is presented or secured. 38 U.S.C.A. § 5108 (West
1991). The United States Court of Veterans Appeals (Court)
has ruled that, if the Board determines that new and material
evidence has been submitted, the case must be reopened and
evaluated in light of all the evidence, both new and old.
Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). In order to
reopen a previously and finally disallowed claim, there must
be new and material evidence presented or secured since the
time that the claim was finally disallowed on any basis (not
only since the time that the claim was last disallowed on the
merits). Evans v. Brown, 9 Vet.App. 273 (1996).
The March 1994 Board decision was the only final disallowance
of the claim for service connection for arthritis of multiple
joints. Therefore, the Board will determine whether to
reopen that claim based on whether new and material evidence
has been submitted since the March 1994 Board decision.
New and material evidence means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
and which is neither cumulative nor redundant. 38 C.F.R.
§ 3.156 (1997). In order to be considered new, evidence must
not merely
summarize or repeat evidence submitted in previous
proceedings. See Wilisch v. Derwinski, 2 Vet.App. 191, 193
(1992). New evidence is considered material when it is
relevant and probative of the issue at hand. There must be a
reasonable possibility that the new evidence, when viewed in
the context of all the evidence, both old and new, would
change the outcome. Colvin v. Derwinski, 1 Vet.App. 171, 174
(1991).
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R.
§ 3.303 (1997). In the case of certain chronic diseases,
including arthritis, service connection may be presumed if
the disease became manifest to a degree of 10 percent
disabling or more within one year after separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 &
Supp. 1997); 38 C.F.R. §§ 3.307, 3.309 (1997).
The evidence that was associated with the claims file prior
to the March 1994 Board decision included service, private,
and VA medical records, and statements from the veteran. The
service medical records included outpatient treatment notes
from June 1966 that reported treatment for myalgia of the
anterior thigh. Outpatient treatment notes dated from October
through December 1966 reflected treatment for pain in the
left knee. Treating physicians reported impressions of a
mild strain, and of a possible meniscus problem. X-rays
indicated that there was no fracture of the left knee.
December 1966 notes indicated that the veteran was receiving
physical therapy.
In a medical history dated in February 1967, the veteran
reported that he had a history of swollen or painful joints,
with intermittent pain in the left knee. No musculoskeletal
disorder was noted on examination of the veteran in February
1967. In April 1967, the veteran sought outpatient treatment
for mild pain in his lumbar region, aggravated by bending.
Examination revealed full range of motion, normal deep tendon
reflexes, and negative straight leg raising tests. Lumbar
spine x-rays were negative. The examiner’s impression was
probable lumbar strain. In May 1967, he was seen for trauma
to the fourth and fifth metacarpals in his right hand. No
diagnosis was made.
The veteran sustained an injury of his right knee in May
1973. The records indicated that the knee was surgically
repaired, and that he received ongoing treatment of the knee
in 1973 and 1974. In March 1974, a clinical record noted
that he was taking medication for an orthopedic problem. In
September 1974, he was fitted with a brace. Service and VA
medical records that addressed the veteran’s right knee
injury and disability reflected that he walked with a right-
sided limp. In an August 1975 letter, James B. Steichen,
M.D., wrote that the veteran had developed recurrent
ganglions in his left wrist due to use of a crutch and a cane
following the 1973 injury of his right knee.
In February 1979, the veteran wrote that he had been
diagnosed with degenerative arthritis both during service,
and on VA examination in October 1977. He asserted that
degenerative arthritis had spread, and that he currently had
pain in his right hand, right shoulder, left elbow, lower
back, and left knee. He noted that the joints in his right
hand had become visibly enlarged.
The veteran was admitted to a VA Medical Center (VAMC) in
November 1987 for treatment of a prolapsed hemorrhoid. The
hospital records noted that he also had arthritis of the
right knee and of both hips. VA outpatient treatment notes
dated from 1987 through 1990 included degenerative joint
disease (DJD) among the veteran’s diagnoses. Most of the
notes described the DJD as affecting the right knee, some
notes indicated that multiple joints were affected, and some
notes did not indicate which joint or joints were affected.
The evidence that has been added to the claims file since the
March 1994 Board decision includes a statement from the
veteran, and copies of service medical records. In a
statement received in August 1994, the veteran wrote that his
service medical records showed numerous prior treatment for
injuries to joints other than his right knee. He asserted
that the records indicated that he had pain in multiple
joints, and that such symptoms were precursors of
degenerative arthritis. He enclosed copies of service
medical records that showed 1966 records of treatment of the
left knee, 1967 reports of history of left knee pain, and a
March 1974 clinical record that indicated that he was taking
medication for an orthopedic problem. Each of the records
that he sent had been included in the claims file prior to
the March 1994 Board decision.
The service medical records that the veteran submitted are
not new evidence, as those records were included in the
claims file prior to the March 1994 rating decision. In his
1994 statement, the veteran asserted that symptoms of joint
pain that he had during service were precursors of
degenerative joint disease in multiple joints that was
diagnosed during service. In the March 1994 decision, the
Board noted that the service and post-service medical records
did not show that the veteran developed arthritis of joints
other than the right knee in service or during the year
following separation from service. Although the veteran has
since made the argument that his multiple joint arthritis had
its origin in service, he has not submitted any new medical
evidence that the arthritis was found in service or soon
after service. Without medical evidence that multiple joint
arthritis was incurred in service, the addition of the
veteran’s argument that it was incurred in service does not
raise a reasonable possibility that the outcome of the
previous Board denial would be changed. The opinions of lay
people are not evidence as to issues of medical diagnosis;
and medical evidence is needed to link a current condition to
service for purposes of service connection. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); Caluza v. Brown, 7 Vet.
App. 498 (1995). Therefore, the Board finds that the veteran
has not submitted new and material evidence such that his
previously denied claim for service connection for arthritis
of multiple joints may be reopened. The claim is denied.
Left Knee
In addition to service connection based on a disability
resulting from disease or injury incurred in or aggravated by
service, service connection may also be granted for a
disability which is proximately due to or the result of a
service-connected disease or injury. 38 C.F.R. § 3.310(a)
(1997). The veteran is seeking service connection for a left
knee disability, and he claims that the left knee disability
was caused by a service-connected disability of the right
knee. The right knee disability that is service-connected is
a post traumatic disability, with post operative residuals,
multiple internal derangement injuries, ligamentous laxity,
and chondromalacia patella.
A person who submits a claim for veteran's benefits has the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court has
defined a well grounded claim as a plausible claim; one which
is meritorious on its own or capable of substantiation.
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). When a
veteran has presented a well grounded claim within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991), the Department
of Veterans Affairs (VA) has a duty to assist the veteran in
the development of his claim. 38 U.S.C.A. § 5107(a) (West
1991).
In the veteran’s service medical records, outpatient
treatment notes dated from October through December 1966
reflected treatment for pain in the left knee. Treating
physicians reported impressions of a mild strain, and of a
possible meniscus problem. X-rays indicated that there was
no fracture of the left knee. The veteran underwent physical
therapy for the knee. In a medical history dated in February
1967, the veteran reported that he had a history of swollen
or painful joints, with intermittent pain in the left knee.
No musculoskeletal disorder was noted on examination of the
veteran in February 1967. The report of a November 1969
service examination noted no complaint or disorder affecting
the lower extremities.
Service medical records documented that the veteran sustained
an injury to his right knee in 1973. In the years that
followed, he underwent several surgeries on that knee.
Medical records in the claims file document ongoing
disability of the right knee, and the veteran is service-
connected for that disability. Both service and VA medical
records that address the veteran’s right knee injury and
disability have reflected that he walks with a right-sided
limp.
After service, the earliest record of complaints involving
the veteran’s left knee is from February 1979, when the
veteran wrote that he sometimes had pain in his left knee.
VA outpatient treatment records dated from 1987 to 1990 noted
that the veteran had DJD in the right knee and other joints,
but the records did not specifically indicate that the
veteran had DJD in the left knee.
On VA examination in August 1995, the veteran reported that
he had problems with his left knee due to disability of his
right knee. He reported constant pain in both knees,
instability in both knees, and swelling with increased
activities. Examination revealed a right limp, normal
station, and satisfactory heel and toe walk. Both knees were
swollen, the right knee more than the left. Both knees were
tender medially, and the range of motion was decreased. The
range of motion of the left knee was to 140 degrees of
flexion and 10 degrees of extension. The right knee was
found to be very unstable, while the left knee seemed solid.
On x-rays, the left knee was essentially normal in
appearance.
In February 1997, the veteran underwent a VA orthopedic
examination, performed by William Lee Steele, M.D. The
veteran described a 1973 injury to the right knee, and the
subsequent problems with the right knee. He reported that
around 1980 he began to have pain in his left knee, along
with continuing problems with his right knee. He reported
that he used a cane with walking, and that his capacity was
limited to one block of walking and fifteen minutes of
standing. Dr. Steele found that the veteran’s left knee had
a range of motion of 0 to 130 degrees. The examiner noted a
definite hamstring slip over the posterior aspect of the left
knee, which was not due to any interarticular pathological
process. Testing revealed that the left knee was stable,
with no effusion, increased heat, or signs of threatened
interarticular derangement. X-rays of the left knee revealed
the presence of a fabella, well maintained joint
compartments, and no apparent degenerative changes of the
retropatellar surface. Dr. Steele’s impression was
arthralgia of the left knee.
Dr. Steele wrote that he had carefully reviewed the veteran’s
claims file. He noted the records of treatment in service in
1966 for pain in the left knee joint. He noted that in 1966
the knee was reported to be stable, and that it was treated
with an Ace bandage and Fiorinal. He stated that the 1966
injury apparently resolved. In response to VA’s request for
an opinion regarding the etiology of the veteran’s left knee
condition, Dr. Steele wrote:
I am unable to establish definite
objective evidence of a disability within
the left knee joint at the present time
other than the patient’s reports of pain
which remains nonobjective based on the
above findings. I am unable to relate
the symptoms within the left knee as
being caused by the service-connected
right knee injury.
The veteran has reported that he has pain in his left knee.
The medical evidence, however, does not show that he
currently has a diagnosable disorder or disability affecting
the left knee. The Court has established that, in order to
form a well grounded claim for service connection, there must
be evidence of a present disability. See Rabideau v.
Derwinski, 2 Vet. App. 141 (1992). A current disability must
be shown by competent evidence, i.e., a medical diagnosis.
See Caluza v. Brown, 7 Vet.App. 498 (1995). The Board finds
that, despite his reports of pain, the veteran has not
submitted adequate medical evidence that he current has a
disability of the left knee. In the absence of such
evidence, his claim for service connection for a left knee
disability is not a well grounded claim. The Board also
notes that the existing evidence does not include competent,
medical evidence supporting the veteran’s contention that a
left knee disorder is linked to the service-connected right
knee disorder or to events in service. The claim for service
connection is denied.
ORDER
New and material evidence has not been submitted to reopen a
claim for service connection for arthritis of multiple
joints, and the claim remains denied.
A well grounded claim for service connection for a left knee
disorder not having been submitted, the claim is denied.
(CONTINUED ON NEXT PAGE)
HOLLY E. MOEHLMANN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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